Complaint: Solicitor not allowed to prevent client from complaining to regulators
A Solicitors Regulation Authority (SRA) adjudicator was wrong to rebuke a solicitor for supposedly trying to prevent a client from reporting him to the regulator and Legal Ombudsman, the Solicitors Disciplinary Tribunal (SDT) has held.
It found that the adjudicator wrongly identified factors that aggravated the conduct of Liam Connolly and also gave “insufficient consideration to the mitigating factors”.
As a result, the rebuke was a disproportionate sanction and the SDT revoked it.
Mr Connolly is an equity partner at Reading-based Rowberry Morris. In August 2022, a former client, ‘Mrs S’, sent a letter before action, making various complaints about the service she had received and seeking a refund of the £2,616 she paid in fees.
The solicitor responded with a ‘without prejudice’ offer of settlement on the firm’s behalf, the terms of which at point three included settlement of “any regulatory action”, such as a complaint to the SRA or ombudsman.
Mrs S responded by asking how he reconciled that with rule 7.5 of the code of conduct, which says solicitors should not attempt to prevent anyone from providing information to the SRA or other regulatory body.
In an email on 14 September, Mr Connolly replied: “We are not attempting to prevent you from providing information to the SRA. You are free to do so if you wish. If you do so however, you will not be able to accept our offer.”
Two days later, Mrs S said she would be willing to accept the offer if this provision was deleted.
Mr Connolly agreed, saying: “To be entirely clear, we have not tried to prevent you from providing information to the SRA, or cooperating with an investigation and we had no intention of restricting those things.
“We do not consider that our point 3 conflicts with the code of conduct. It does not prohibit you from providing information. We are however happy to remove it to avoid confusion.”
A few months later, Mrs S’s husband reported the firm to the SRA.
Mr Connolly accepted that the 14 September email was “confusing” and could be construed as a breach of rule 7.5. But he said the breach was promptly corrected, no harm was caused, and he had expressed considerable regret and remorse.
The adjudicator did not accept that Mr Connolly had made a mistake – the 14 September email was clear and Mrs S was being offered a financial incentive on the basis that she would not complain to the regulator.
The adjudicator decided to rebuke the solicitor, publish it and order him to pay the SRA costs of £1,350, a decision upheld on appeal to an adjudication panel. Mr Connolly took the case to the SDT.
It found the adjudicator had erred in treating certain factors as having aggravated the seriousness of the conduct.
“The fact that the appellant was personally responsible for his actions and for his choice of words in the correspondence could not, objectively, be viewed as aggravating factors. They were not matters which added anything to his admitted conduct,” it said.
Similarly, the fact that Mrs S was able to identify the meaning of paragraph 7.5 was not an aggravating factor.
The SDT continued: “It was a stretch of reasoning for the adjudicator to conclude that his presumed ‘intent and motivation’ was an aggravating factor particularly as there was no suggestion of any lack of integrity or dishonesty on the appellant’s part.”
There was no evidence before the adjudicator that the 14 September email “had been anything more than a mistake caused by the appellant’s lack of knowledge”.
The adjudicator had acknowledged that any attempt to actually prevent Mrs S from reporting the firm to the SRA would have been fruitless and unenforceable and that, while there was a risk of harm, none materialised.
The adjudicator also overstated the delay in which the mistake was remedied, which had been no more than a few hours.
“The remaining factor which raised the seriousness of the conduct essentially boiled down to the fact that the breach was only rectified after the client queried the terms of the offer,” the SDT said.
The adjudicator gave “insufficient consideration to the mitigating factors”, and did not take into account Mr Connolly’s admission of breaching the rule.
The SDT decided: “Without the existence of the aggravating factors identified by the adjudicator and now discounted by the tribunal, the appellant’s conduct could not be ‘elevated above merely a minor or moderate breach of the rules’ and to this end the tribunal concluded, on the balance of probabilities, that a rebuke had been a disproportionate sanction in all the circumstances and that the adjudicator’s decision should therefore be revoked.”
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